Vancouver Estate Litigation: To be, or not to be - Estate Lit. & the Canadian Charter.
Estate litigation is a sensitive field of law involving emotions and close relationships. Often, it is two or more siblings who are litigating against one another and about their parent’s estate. The ultimate question becomes, who ought to be entitled to what.
In the event a will-maker dies leaving a Will that does not make adequate provisions for the proper maintenance and support of the will-maker's spouse or children, the court may order that the Will is varied. The Court will do so on the basis of ensuring that adequate, just, and equitable provisions are made for all the will-maker's children (or spouse).
Certainly, this is the law and it is reasonable law.
However, many have posed the following blunt, albeit complex, question:
who are the Courts to interfere with a person’s desires regarding his/her funds, property, shares, or otherwise?
In other words, if Person XYZ worked his/her entire life to accumulate $10 million and desired to leave the estate to one of his/her three children, who are the Courts to infringe on his/her desires, particularly after Person XYZ has passed away? Person XYZ will never be able to speak as to why he/she has cut out or disinherited two of the children.
This question was considered in the Lawen Estate v. Nova Scotia (Attorney General), 2019 NSSC 162. In this case, a father of four passed away in 2016 (the “Will-Maker”). The Will-Maker owned several residential income-producing properties throughout Halifax; he had a substantial estate upon his death. In his last Will, the deceased made an unequal division of his estate with $50,000 each going to two (of three) of his daughters, and the residue of the estate being left to his son. The three daughters commenced an action against the estate.
The will was not contested based on undue influence or lack of testamentary capacity.
The Court considered the complexities of estate litigation legislation (aka wills variations provisions) in light of the Canadian Charter. In short, the Court considered whether the moral obligation of a parent to ensure that adequate, just, and equitable provisions are made for all the Will-Maker's children can be reconciled with ss. 1 and 7 of the Charter, which state as follows:
s. 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
s. 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
In the Court’s finding, the Trial Judge concluded that wills variation provisions in the Province of Nova Scotia did infringe on a deceased’s Charter rights. The Court stated:
sections 2(b) and 3(1) of the TFMA infringe upon testamentary autonomy and violate the right to liberty guaranteed by s. 7 of the Charter and the infringement is not justified under s. 1.
As such, the daughter’s remained disinherited while the son was left living in prosperity. It should be noted that this case has been appealed to the Nova Scotia Court of Appeal.
Please look for our next series of blogs which will consider the impacts of this case on: BC’s wills variation legislation (Wills, Estate, and Succession Act); BC case law (e.g., Jean-Richard-Dit-Bressel v Carr, 2020 BCSC 946); on Canada’s legal landscape; and on BC’s disinherited daughters.